R (A Child)

In a finely balanced child-contact case involving a seriously disabled child, the court should proceed cautiously where the evidence is tentative or incomplete. A parent must have a fair opportunity to present objections and challenge the evidence before significant contact arrangements are ordered. The court must assess the significance of the proposed contact from the child’s perspective, rather than treating a short period of contact as necessarily modest. Where expert evidence supports delaying contact briefly so that it can be introduced safely, carefully planned and properly monitored, that course may outweigh the benefit of immediate contact.

The mother appealed against two orders made by HHJ Beashel in the Weymouth & Dorchester County Court. On 31 May 2007 the judge ordered that the seriously disabled child should have two half-hour periods of contact with her father during contact with her paternal grandparents. On 19 June he dismissed the mother’s application to review that order.

The orders were made during truncated hearings. The judge had tentative expert and CAFCASS material, but no up-to-date school report and no formal opportunity for the relevant evidence to be tested by cross-examination. The central issue was whether the proposed contact should proceed immediately or be delayed until it could be introduced in a safer and more informed manner.

Ward LJ delivered the substantive judgment. Mummery and Jacob LJJ agreed.

1. Appeal allowed. Permission was granted and paragraph 6 of the order dated 31 May 2007 was discharged.
2. The decision to order contact was finely balanced. The evidence before the judge was incomplete and tentative. The mother had raised genuine objections concerning the absence of an up-to-date school report and the inability to cross-examine or challenge the recommendations. In those circumstances, fairness required the judge to proceed more cautiously and allow the evidence and objections to be properly considered before making the order.
3. The judge materially mischaracterised the proposed contact as modest. Although it involved only two half-hour periods, it would have been the child’s first direct contact with her father for a substantial period and the first step in a significant process of reconciliation. Its importance had to be assessed from the child’s perspective, having regard to her serious disabilities and vulnerability.
4. The court considered that a short delay would not seriously harm the child. The benefits of waiting until the contact could be introduced in accordance with the experts’ recommendations, with appropriate planning, monitoring and reporting, outweighed the advantage of immediate reintroduction. The forthcoming substantive hearing should focus on how contact could safely be established, including the evidence of the experts, the CAFCASS officer and the special-needs teacher.

1. Court of Appeal (Civil Division) — Permission granted and appeal allowed. Paragraph 6 of the order dated 31 May 2007 was discharged.
2. Weymouth & Dorchester County Court — HHJ Beashel ordered two half-hour periods of contact on 31 May 2007 and dismissed the mother’s review application on 19 June 2007.